When couples with children divorce, there is understandably a focus on the arrangements made for the children. A lot of time and effort is spent ensuring a fair division of care and contact between the parents.
Unfortunately, the rights of grandparents are often overlooked. Despite being intimately involved in their grandchildren's lives and upbringing and often providing care, grandparents may be refused access to their grandchildren.
This is more likely to happen when the divorce is acrimonious and one parent's time with the children is restricted or supervised, such as where there are substance abuse issues.
When one parent dies, the surviving parent may neglect the desire of the deceased partner's parents to spend time with their grandchildren, even though that contact may be hugely therapeutic for both children and grandparents in their loss.
Read: Unmarried parent? Know your rights
What does South African law say?
South African laws only give rights to parents. According to a court judgment, "the law confers no entitlement on anyone other than the legitimate parents of children".
As a general rule, grandparents do not have any specific rights over their grandchildren. However, the Children's Act 38 of 2005 allows these rights to be established.
South African law is very clear in this regard, and the courts do not like to intrude on issues of parental authority and will only do so if it would positively affect the child's upbringing and well-being.
In a 2004 judgment, the court denied contact with the applicant's grandparents due to tension and conflict within the family that was not in the child's best interest.
It held that "grandparents have a beneficial role to play in their grandchildren's life, but that role should not supersede the role of the [parents who wish] to be involved in [their] children's lives".
Must see: I’ve been denied access to my grandchild; what are my rights after a divorce or death?
Benefits of extended family relationships
Children benefit immensely from a close relationship with grandparents and other extended family members. Section 23 of the Children's Act covers the assignment of care and contact over a minor to an interested person by court order.
An "interested person" is anyone interested in a child's care, well-being, or development, such as a grandparent. Still, a close aunt or uncle could also be an interested person.
They may approach the High Court or Children's Court for an order granting care of and contact with the child. As with all matters concerning a minor child, when a grandparent brings an application for either maintenance or contact over their grandchild, the court's main consideration is the child's best interests.
The child's need to stay in the care of their parents or family and the need to maintain connections with their family, culture and traditions are important factors a court will consider when making a decision.
The relationship between the grandparents and the child and the degree of commitment they express toward the child, and their involvement in the child's life are other factors the court will consider.
Also read: How does guardianship work in the case of untimely death? What unmarried parents should know
If grandparents are granted care or contact rights, the parental rights and responsibilities of other parties (i.e., the legitimate parents or guardians) are not diminished.
If a grandparent seeks more than contact alone and wishes to take on parental responsibility fully, through an application for guardianship, they will have to give the High Court, as the upper guardian of all minors, sufficient reasons as to why the child’s current guardian is not a suitable person to hold such title and rights.
This can happen if the parent or parents have substance abuse or mental health issues that prevent them from exercising parental responsibility and providing their child with appropriate care and attention, or if the living situation is unsuitable for a child.
Litigation – avoid it if possible
The litigation route should always be a last resort as it can cause a lot of tension and hostility in the family. Should the court application fail, the grandparents and the grandchildren may be further alienated from each other.
A formal mediation process should occur before litigation, where the parties can agree on a mutually beneficial outcome.
Must read: #MaintenanceMatters: Everything you need to know about child maintenance
If the parents are not financially able to take care of their child, the burden of maintaining the child falls onto the maternal and paternal grandparents.
In a case involving Simon's Town Maintenance Court, the Constitutional Court stated that paternal grandparents have a duty of support towards a grandchild even though the child was born out of wedlock.
In summary, grandparents or other parties who want to play a significant role in a child's life must represent a positive influence, not create conflict and dissension in their environment and, above all, respect the parental rights and responsibilities of the child's parents, if they wish to be granted care and contact rights.
Simon Dippenaar is a Family lawyer at SD Law, a firm of experienced divorce attorneys based in Cape Town, with offices in Johannesburg and Durban. This article is reprinted with permission.
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